Thippeswamy vs Giridhara
2022 Latest Caselaw 13030 Kant

Citation : 2022 Latest Caselaw 13030 Kant
Judgement Date : 15 November, 2022

Karnataka High Court

Thippeswamy vs Giridhara on 15 November, 2022

Bench: H.P.Sandesh

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 15TH DAY OF NOVEMBER, 2022

                          BEFORE

            THE HON'BLE MR. JUSTICE H.P. SANDESH

                M.F.A.NO.5415/2013 (MV-I)

BETWEEN:

THIPPESWAMY
S/O. VENKATESHAPPA
AGED ABOUT 44 YEARS
AGRICULTURSIT
R/O. BOMMENAHALLY
CHITRADURGA-577 501.                            ... APPELLANT

              (BY SRI B.M.SIDDAPPA, ADVOCATE)
AND:

1.     GIRIDHARA
       S/O. D.R. ANJINEYA
       AGED ABOUT 37 YEARS
       AGRICULTURIST
       R/O. BOMMENAHALLY
       CHITRADURGA TALUK-577 501.
       OWNER OF MOTOR VEHICLE
       BEARING NO.KA-16/S-9583

2.     THE BRANCH MANAGER
       NATIONAL INSURANCE CO. LTD.,
       BRANCH OFFICE
       B.M. COMPLEX, LAXMI BAZAR,
       CHITRADURGA-577 501.             ... RESPONDENTS

     (BY SRI S.SRISHAILA, ADVOCATE FOR R2 [THROUGH VC];
                         R1 IS SERVED)
                                  2



     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 30.03.2013
PASSED IN MVC NO.1579/2010 ON THE FILE OF THE
ADDITIONAL DISTRICT & SESSIONS JUDGE, ADDITIONAL MACT,
CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION      AND     SEEKING    ENHANCEMENT     OF
COMPENSATION.

     THIS M.F.A. COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

Heard the learned counsel for the appellant and learned

counsel for respondent No.2.

This appeal is filed challenging the judgment and award

dated 30.03.2013 passed in M.V.C.No.1579/2010 on the file of

the Additional District and Sessions Judge and Additional MACT,

Chitradurga ('the Tribunal' for short) questioning the quantum of

compensation as well as the liability.

2. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

3. Admittedly, the rider of the motorcycle was not

having driving license as on the date of the accident and the

same was renewed subsequently i.e., after the accident in terms

of Ex.R2. Hence, the Tribunal has committed an error in

fastening the liability on respondent No.1 instead of ordering for

pay and recovery since, the claimant is a third party.

4. Now, with regard to the quantum of compensation is

concerned, the claimant has sustained fracture of fibula and the

Tribunal has awarded Rs.20,000/- on the head of pain and

suffering and the claimant was inpatient for a period of 7 days.

Having taken note of the said fact into consideration, the same is

enhanced to Rs.30,000/- as against Rs.20,000/- awarded by the

Tribunal.

5. The Tribunal awarded Rs.5,000/- towards medical

expenses and other incidental charges. On perusal of the

records, it is seen that medical bills as at Exs.P9 to P11 are

produced which comes to Rs.2,675/-. Admittedly, he was

inpatient for a period of 7 days from 02.09.2010 to 09.09.2010.

Hence, additional amount of Rs.7,000/- is added and

Rs.12,000/- is awarded towards medical expenses and other

incidental charges as against Rs.5,000/- awarded by the

Tribunal.

6. The Tribunal, considering the income of Rs.4,500/-

per month and taking the disability at 5%, awarded Rs.37,800/-

towards loss of earning capacity. I do not find any error in

taking the disability at 5% for fracture of fibula. However, the

Tribunal committed an error in taking the income at Rs.4,500/-

per month and the notional income would be Rs.5,500/- per

month. Hence, taking the income at Rs.5,500/- per month,

disability at 5% and the relevant multiplier '14', Rs.46,200/- is

awarded towards loss of earning capacity.

7. The Tribunal has not awarded any compensation on

the head of loss of income during laid up period. Having

considered the nature of injuries i.e., fracture of fibula, it

requires minimum two months for uniting fracture and rest.

Hence, taking the income at Rs.5,500/- per month for a period

of two months, a sum of Rs.11,000/- is awarded towards loss of

income during laid up period.

8. The Tribunal has not awarded any compensation on

the head of loss of amenities and considering the fact that the

claimant has to lead rest of his life with the disability of 5%, it is

appropriate to award Rs.15,000/- on the head of loss of

amenities. Hence, in all, the claimant is entitled for

compensation of Rs.1,14,200/- as against Rs.62,800/- awarded

by the Tribunal with interest at 6% per annum.

9. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is allowed in part.

      (ii)    The impugned judgment and award of the
              Tribunal    dated       30.03.2013          passed      in
              M.V.C.No.1579/2010          is    modified        granting
              compensation     of     Rs.1,14,200/-       as     against

Rs.62,800/- with interest at 6% per annum from the date of petition till deposit.

(iii) The Insurance Company is directed to pay the compensation amount with interest within six weeks from today and recover the same from the insured.